JDG: NO JK, 0 TXT MSGS = SPOLI8

“I lost my phone.” As litigants are finding out, this twenty-first century excuse for the loss of data fares no better than the old “dog ate my homework” line. The lesson from courts is clear: the duty to preserve extends beyond work computers to personal mobile devices.

For example, in Christou v. Beatport, LLC (D. Colo. Jan. 23, 2013), the plaintiffs filed a motion for spoliation sanctions based on a key defendant’s failure to produce any text messages in discovery. The plaintiffs had asked the defendants to preserve relevant documents, including text messages, in a litigation hold letter. But when the defendants’ document production was devoid of texts, the key defendant admitted he had lost his iPhone and with it, his text messages. However, he claimed any deleted texts were not relevant because he used the phone strictly for personal use – not work. The judge rejected this self-serving testimony, noting that defense counsel did not indicate they had even reviewed any text messages to determine their relevance. Accordingly, the judge found the loss of evidence negligent, granted the plaintiffs’ motion, and sent the issue to the jury: at trial, the jurors could draw their own inference from the defendants’ failure to comply with their discovery obligations.

This case highlights the importance of preserving all forms of potentially relevant evidence once litigation becomes reasonably foreseeable. Parties cannot ignore discoverable data that may exist beyond corporate servers and work-issued computers. Instead, as work increasingly becomes mobile, companies must search for data on smartphones, tablets, and other devices, including personal devices that employees also use for work.

To ensure more transient forms of evidence are preserved, organizations should take three steps:

Create “bring your own device” (BYOD) policies explaining that they have the right to access work-related data on employees’ mobile devices, establishing procedures for handling the loss or theft of these devices, and describing procedures for managing data stored on these devices when employment ends.

Before litigation arises, proactively identify all custodians and their data sources—both inside and outside the building—and record them on a data map.

Once the duty to preserve is triggered, include mobile data in the legal hold notice.

Although there is no surefire way to eliminate the risk of losing evidence, these actions can protect companies from severe sanctions by showing a good faith effort to preserve data.